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acted in collusion with him, merely for the purpose of suing out the writ, his restraint being merely nominal; 5 when he has given an undertaking and is on the jail limits, which comprise an entire county; 6 and where it appears to the satisfaction of the court that the arrest was made by collusion with him, for the purpose of summarily testing a question of jurisdiction.? It has been held, however, that an appeal from an order denying the writ will not be dismissed because the petitioner, pending the appeal, was admitted to bail.8
§ 461d. The writ of habeas corpus ad testificandum. The writ of habeas corpus ad testificandum is issued to remove a prisoner in order that he may testify in court. This writ is not the high prerogative writ for deliverance from unlawful imprisonment but merely the ancient precept of the common law to bring a prisoner into court to testify. It is a process of the court with an object analogous to that sought to be obtained by a subpæna to a duces tecum.3
When this writ does not direct the production of the prisoner before the judge who grants it, may be quashed by any other judge of the court. This should be done when the witness is insane and incompetent to testify, and is usually done when the law permits his testimony to be taken by deposition.6
$ 461e. Habeas corpus to protect officers of the United States. The Supreme Court and the District Court of the United States have power to issue the writ of habeas corpus "where a prisoner is in custody, under or by color of the authority of the United States, or is committed for trial before some court thereof; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or a judge thereof." 1
This provision of the Revised Statutes
6 Re Gow, 139 Cal. 242, 73 Pac. 145. Contra, Re Grice, 79 Fed. 627.
6 People ex rel. Smith v. Biggart, 25 App. Div. 20.
7 Ex parte Simon, 208 U. S. 144, 52 L. ed. 429, in which the author was counsel.
8 MacKenzie v. Barrett, C. C. A., 141 Fed. 964.
$ 461d. 1 Blackstone's Comm. III,
2 Re Thaw, C. C. A., 166 Fed. 71, 74.
6 Rc Thaw, 172 Fed. 288, Oct. 1906.
$ 461e. 1 U. S. R. S., $ 753, Comp. St. § 1281.
is a re-enactment of the Act of March 2, 1833, which was occasioned by the controversy growing out of the nullification laws of South Carolina when Federal customs officers were arrested for the performance of their duties in collecting the revenue of the United States there. “In case of a suit or prosecution in a State court against a revenue officer of the United States, or a person acting under or by authority of any such officer on account of any right, title, or authority claimed by such officer or other person under a revenue law of the United States or against any person holding property or estate by title derived from any such officer and the validity of any such revenue law is thereby affected; or against any officers of the courts of the United States for or on account of any act done under color of his officer or in the performance of his official duties or when any suit or prosecution is commenced against any person for or on account of anything done by him while an officer of either House of Congress in the discharge of his official duty in executing any order of such house; when commenced by capias or by any similar form of proceeding by which a personal arrest is ordered and a proper petition for the removal of the cause is filed: the clerk of the District Court of the United States must issue a writ of habeas corpus cum causa under which it is the duty of the marshal to take the body of the defendant into his custody to be dealt with in the cause according to the law and the order of the District Court, or in vacation of any judge thereof." 3
An act by an officer of the United States in the discharge of his official duty is done in pursuance of a law of the United States, although there is no express statutory authority for it. Therefore an officer of the United States may be released by the writ of habeas corpus when he has been indicted or convicted in a State court for a violation, in the discharge of his official functions, of a State statute which, so far as it applied to
2 Ch. 57, § 7, 4 St. at L. 634, Re Neagle, 135 U. S. 1, 70.
3 Jud. Code, $ 33, 36 S, at L. 1097, as amended 39 St. at L. 532; Comp. St. § 1022. See infra, $ 551.
4 Re Neagle, 135 U. S. 1, 34 L.
ed. 55. See U. S. ex rel. Drury v. Lewis, 129 Fed. 823; Re Leaken, 137 Fed. 680.
5 Ohio v. Thomas, 173 U. S. 276, 43 L. ed. 699; Re Fair, 100 Fed. 149.
him, the State had no power to enact. Where a Federal court had enjoined the enforcement of a State statute regulating railroad rates, and in its order prescribed conditions for the sale of tickets at prices in excess of those fixed by the act; it was held that a ticket agent imprisoned for the sale of tickets at such prices in the manner prescribed by the order was in custody for an act done in obedience to an order of a court of the United States.?
A person imprisoned pursuant to a Territorial law is not in custody under, or by virtue of, the authority of the United States; and upon a writ of habeas corpus from a Federal court he is in no better position in this respect than a prisoner convicted by a State court for the violation of a State law.8
The Federal court upon the return of the writ has jurisdiction summarily to hear the evidence and if it appears that the acts of which complaint is made were committed under or by color of the authority of the United States finally to dispose of the charges. This has been done when the charge was murder or manslaughter alleged to have been committed by a soldier, 10 or a deputy marshal.11 When the acts were not committed under or by color of the authority of the United States the writ will be dismissed without any inquiry into the truth of the charges.12 When there is grave doubt as to whether the acť was committed in discharge of official duty, the Federal court may in its discretion dismiss the writ and leave the prisoner to his remedy by writ of error or certiorari from the Supreme Court of the United States to the highest State court of review. 13
6 Re Waite, 81 Fed. 359.
7 Hunter v. Wood, 209 U. S. 205, 52 L. ed. 747, affirming 155 Fed. 190.
8 Connella v. Haskill, C. C. A., 158 Fed. 285; Low Wah Suey v. Backus,. 225 U. S. 460, 472, 56 L. ed. 1165, 1169.
9 Re Neagle, 135 U. S. 1, 34 L. ed. 55, a deputy marshal; Kelly v. Georgia, 68 Fed. 652, a deputy marshal; Re Waite, 81 Fed. 359; S. C., C. C. A., 88 Fed. 102, a pension examiner; Re Lewis, 83 Fed.
Fed. Prac. Vol. III—7
159 (special employees of the Treasury Department); Re Fair, 100 Fed. 149, a soldier; Re Laing, 127 Fed. 213, a deputy marshal; Lewis v. Lipsett, 156 Fed. 65, a soldier; Re Wulzen, 235 Fed. 362, a soldier.
10 Re Fair, 100 Fed. 149; Lewis v. Lipsett, 156 Fed. 65; Re Wulzen, 235 Fed. 362.
11 Re Neagle, 135 U. S. 1, 34 L. ed. 55; Kelly v. Georgia, 68 Fed. 652; Re Laing, 127 Fed. 213.
12 Re Marsh, 51 Fed. 277.
When an officer or soldier of the United States is arrested by State process because of violence used by him in the course of an arrest or an attempt to make an arrest, in order to obtain his discharge before trial he must ordinarily show that he had authority from the United States to make such arrest of a person guilty of an offense against the laws of the United States; that he honestly believed and had reasonable cause to believe that the person he sought to arrest was guilty of such an offense; that he acted without the scope of his authority and used no more force than he honestly and reasonably believed to be necessary in order to make the arrest, and that the case is one of urgency in which the delay by trial in the State court will interfere with the enforcement of the laws of the United States or the operation of the national government.14
§ 461f. Habeas corpus to protect those acting under authority of foreign states. The statutory provision extending the privilege of the writ of habeas corpus to one who "being a subject or citizen of a foreign state, and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, or order, or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations;"? 1 was enacted to prevent criminal prosecutions in the State courts which might interfere with harmony between the United States and foreign relations. Its necessity was shown by the case of Alexander McLeod.? his subject of Great Britain was imprisoned and indicted for murder by the Supreme
Castle v. Lewis, C. C. A., 254 Fed. 917.
14 Castle v. Lewis, C. C. A., 254 Fed. 917, 921. § 461f.
1 U. S. R. S., $ 753, Comp. St. $ 128.
2 People v. McLeod, 25 Wendell, N. Y., 483; Trial of Alexander McLeod, for the Murder of Amos Dur. fee; and as an Accomplice in the Burning of the Steamer Caroline, in the Niagara River, during the Canadian Rebellion in 1837-38. Pub. lished at the Sun Office, 1841; the
Trial of Alexander McLeod for the Murder of Amos Durfee at the Burning and Destruction of the Steamboat Caroline by the Cana. dians, December 29, 1837. Reported by Marcus T. C. ald, Stenog rapher, assisted by H. Fowler, Esq., Stenographer of Canada. Published by Gould, Banks & Co., New York, and William A. Gould, Albany, Nov. 1, .1841. Gould Stenographic Reporter, Vol. II. American State Trials, Vol. II. 61.
Court of the State of New York because in his cups he had bragged that he had taken part in the fire of the steamboat Caroline by a band of Canadians while this boat was employed in carrying ammunition and supplies to a company of insurgents against the Canadian government who were defending themselves upon a navy island on the Canadian side of the Niagara River. In the course of the destruction an American citizen had been killed. The British Foreign Office assumed responsibility for the acts of violence of which complaint was made, and demanded McLeod's return.3 A report by the Committee on Foreign Relations of the House, which severely criticized the language of the British Minister inflamed the situation. This was endorsed by a majority of the house which was Democratic and consequently opposed to the new administration which was about to enter office. At that time the Federal courts had no jurisdiction to interfere. Consequently, McLeod at the suggestion of Daniel Webster, who was then the Secretary of State, applied for the writ to the Supreme Court of the State of New York, where he was represented by the District Attorney of the United States acting in his private capacity. Judge Esek Cowen of that court denied the discharge and held the prisoner for trial.5 The British Government ordered the mobilization of part of its troops and ships. At the trial, the State of New York was represented by its Attorney-General and the accused again by the District Attorney of the United States. McLeod denied that he had boasted of the act and offered proof of an alibi. This was accepted by the jury, who acquitted him. Judge Cowen's decision was severely criticized by several eminent jurists.? It resulted in the passage of the Act of August
3 The official correspondence with a few unimportant omissions may be found in 25 Wendell, N. Y., 487513.
4 McMaster's History, Vol. II, pp. 612-614.
5 People v. McLeod, 25 Wendell, N. Y., 483.
6 McMaster's History, Vol. II, p. 618.
7 Review of the Opinion of Judge Cowen, of the Supreme Court of the
State of New York in the case of Alexander McLeod by Judge Talmadge, and letters by Chancellor Kent and Chief Justice Spencer of New York, Judge Rogers of Pennsylvania, Simon Greenleaf of Massachusetts, author of “Greenleaf on Evidence,'' Judge Berrien of Georgia, Chief Justice Clayton of Delaware, Judge Huntington of Connecticut, John J. Crittenden of Kentucky, and Rufus Choate of